Docket Nos. 100681, 102584 cons.

IN THE

 SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

MICHAEL P. COSBY, Appellee.–THE PEOPLE OF THE STATE

OF ILLINOIS, Appellant, v. HUGO MENDOZA, Appellee.

Opinion filed September 18, 2008.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas and Karmeier

concurred in the judgment and opinion.

Justice Freeman concurred in part and dissented in part, with

opinion, joined by Justices Kilbride and Burke.

OPINION

These consolidated cases involve unrelated traffic stops of

vehicles driven by defendants Cosby and Mendoza.

BACKGROUND

Michael Cosby

The State initially charged Cosby with unlawful possession of

drug paraphernalia (720 ILCS 600/3.5 (West 2000)) and unlawful

possession of cocaine (720 ILCS 570/402(c) (West 2000)), resulting
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from a search of Cosby’s vehicle and of a cigarette pack belonging to

Cosby. The drug paraphernalia charge was later nol-prossed by the

State. Cosby filed a motion to suppress evidence. Trial counsel and

the State stipulated to the admission of the police report written by

Officer Steven Kaus and then presented arguments to the circuit court

of Will County. The police report is not in the record on appeal.

However, the appellate court stated the stipulation provided that Kaus

would testify that he stopped Cosby for not having a proper rear

registration light. Cosby provided valid insurance information and a

speeding ticket in lieu of a driver’s license. Kaus returned to his

squad car and called for backup. He verified that Cosby had a valid

driver’s license and that there were no outstanding warrants for his

arrest. When the backup officer arrived, Kaus approached Cosby’s

car, returned his speeding ticket and insurance card to him, and gave

Cosby a warning for the rear light violation. Kaus then asked for

consent to search Cosby’s car. Cosby consented. Kaus found drug

paraphernalia in the console of the car and he arrested Cosby.

The trial court denied the motion to suppress, but did not explain

its reasoning.

At Cosby’s trial, Kaus testified that at approximately 1:30 a.m. on

July 12, 2001, he stopped Cosby’s car for having no rear license plate

light. Cosby handed him a speeding ticket and an insurance card.

Kaus went back to his squad car, where he called for backup in

anticipation of requesting Cosby’s consent to search his car. About

five minutes later, the backup officer arrived. Kaus went back to

Cosby’s car,returned the speeding ticket and insurance card, and gave

Cosby a written warning about the rear registration light. Kaus then

asked Cosby for consent to search his car, which Cosby gave. Prior

to searching the car, Kaus asked for and received consent from Cosby

to search his person. Cosby removed all items from his pockets, Kaus

inspected them, and Cosby replaced the items in his pockets. Kaus

then proceeded to search Cosby’s car. Kaus found a crack pipe in the

car’s center console. He placed Cosby under arrest and took him to

the police station. There, Cosby emptied his pockets and placed his

property on a tray, including a package of cigarettes. Cosby called his

wife to come to the jail and post bond. As Kaus was giving Cosby

back his property, he discovered four rocks of crack cocaine hidden

within the cigarette packaging.
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The jury convicted Cosby of the possession charge and, following

a sentencing hearing, the trial court sentenced Cosby to 24 months of

probation, six months in the county jail, and payment of fines. Trial

counsel filed a motion to reconsider sentence, which was denied.

Counsel did not file a posttrial motion.

Cosby appealed, arguing that the trial court erred in denying his

motion to suppress evidence. The appellate court first addressed

Cosby’s forfeiture of his argument on appeal, noting that Cosby had

failed to preserve the issue in a posttrial motion. However, the

appellate court elected to consider the issue, “[b]ased on the

constitutional nature and underlying implication of the alleged error.”

Relying on this court’s decision in People v. Gonzalez, 204 Ill. 2d 220

(2003), the appellate court held that Kaus’ questioning of Cosby and

his search of Cosby’s car were unrelated to the circumstances

justifying the stop, that Kaus lacked any reasonable, articulable

suspicion that would support his further detention and questioning of

Cosby, and that Kaus’ actions impermissibly prolonged Cosby’s

detention and changed the fundamental nature of the stop.

Accordingly, the appellate court held that the motion to suppress

should have been granted.Cosby, No. 3–03–0681 (unpublished order

under Supreme Court Rule 23).

Justice Schmidt dissented, arguing that Gonzalez has been

implicitly overruled by the United States Supreme Court’s decision

in Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct.

834 (2005). Relying on other decisions of this court and the Supreme

Court, Justice Schmidt would have found the search of Cosby’s car

legal on the basis of a valid consent.

We granted the State’s petition for leave to appeal (210 Ill. 2d R.

315(a)).

Hugo Mendoza

Mendoza was charged in the circuit court of Kane County with

unlawful use of a weapon (720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West

2002)). Mendoza’s trial counsel filed a motion to suppress evidence.

A hearing on that motion was held, at which two police officers

testified. At about 11 p.m. on May 10, 2004, two Aurora police

officers, Inspectors Jeff Wiencek and Joe Weber, observed Mendoza
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driving his Pontiac Grand Prix sedan. They noted that the car’s rear

license plate cover was tinted, in violation of Illinois law. They also

noticed a red bandana hanging from the rearview mirror of

Mendoza’s car, which they considered a gang symbol of the Vice

Lords. In addition, the officers determined the bandana to be large

enough to obstruct Mendoza’s view, which was also a violation of

Illinois law. The officers pulled Mendoza over. Pursuant to their

request, Mendoza handed them his driver’s license and proof of

insurance.

After determining that the license and insurance card were valid

and that Mendoza had no outstanding warrants, the officers decided

to ask Mendoza for permission to search his car. In explaining this

decision, Wiencek, who had been a gang investigator for seven years,

testified that the neighborhood was known for its gang activity.

Although Wiencek did not know whether Mendoza was a gang

member, he knew from covert surveillance, police reports, and

interviewing people that Mendoza was an “affiliate” of the Vice

Lords. Mendoza had been seen in the presence of gang members. The

bandana hanging from Mendoza’s rearview mirror was red, which

was one of the colors used by the Vice Lords. Using the bandana was

one way of signifying affiliation with the gang. The officers were

concerned that Mendoza might have a gun in his car. After checking

Mendoza’s driver’s license and insurance, the officers returned to the

car, one on each side. Weber returned Mendoza’s license and

insurance card, gave him a verbal warning, and asked him if he had

anything illegal in the car. Mendoza responded that he did not. Weber

then asked Mendoza for permission to search his car. Mendoza

refused consent.

Meanwhile, Wiencek, who was standing on the passenger side of

the car, shined his flashlight inside the car and saw the butt of a gun

sticking out from under the driver’s seat between Mendoza’s feet. Not

wanting to create a hostile situation by drawing his gun on Mendoza,

Wiencek tried to surreptitiously signal Weber to the presence of the

gun. However, Weber was talking to Mendoza and Wiencek could

not get Weber’s attention. After Mendoza refused consent to search

his car, Weber told him he was free to leave. Mendoza started to drive

away and Wiencek told Weber about the gun. Weber yelled at

Mendoza to stop, but he did not. The two officers got into their squad
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car and drove after Mendoza. Wiencek could see Mendoza’s head and

shoulders moving, but could not tell what he was doing. Weber did

not notice any movement. The officers pulled Mendoza over again.

They ordered Mendoza to exit the car. They handcuffed him and

patted him down. Wiencek searched the car. Although Wiencek did

not find a gun under the driver’s seat, he found a handgun underneath

a plastic tray in the center console of Mendoza’s car.

The trial court, relying on Gonzalez, granted Mendoza’s motion,

concluding that Weber’s questions to Mendoza after the traffic stop

was concluded were neither related to the traffic stop nor justified by

a reasonable suspicion of additional criminal activity. Since the gun

was not discovered until the officers had already violated the fourth

amendment by their questioning of Mendoza, the trial court found

that the gun would not have been discovered absent the violation. The

State appealed.

The appellate court rejected the trial court’s reliance on Gonzalez.

However, the court nonetheless affirmed the trial court’s grant of

Mendoza’s motion to suppress. The court reasoned that Gonzalez

only applies to traffic stops that are still ongoing. Once Weber

returned Mendoza’s driver’s license and insurance card to him, the

traffic stop concluded and Mendoza was free to leave. Thus, the

proper inquiry is whether Weber’s questioning amounted to a second

seizure. Questioning constitutes a seizure if, in light of the

circumstances, a reasonable person would not have felt free to leave.

If there is a seizure, the fourth amendment is violated if there is no

constitutional justification for it. The appellate court concluded that

Mendoza was seized, noting the presence of more than one officer,

that Mendoza was not told he was free to leave, that the officers used

a “flanking maneuver” in which one officer stood on each side of the

car, and that Wiencek shined a flashlight into the car. The court

further found that the officers lacked either probable cause or a

reasonable articulable suspicion that Mendoza had committed or was

about to commit a crime. The court noted that Wiencek did not see

the gun until after Mendoza was seized. Thus, this fact could not

support the seizure of Mendoza once the traffic stop was concluded.

Mendoza, 364 Ill. App. 3d 564, 581. We allowed the State’s petition

for leave to appeal (210 Ill. 2d R. 315(a)) and consolidated this case

with the appeal in People v. Cosby.
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ANALYSIS

Standard of Review

This court recently set forth the applicable principles in People v.

Luedemann, 222 Ill. 2d 530 (2006):

“In reviewing a trial court’s ruling on a motion to suppress

evidence, we apply the two-part standard of review adopted

by the Supreme Court in Ornelas v. United States, 517 U.S.

690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663,

(1996). Under this standard, a trial court’s findings of

historical fact should be reviewed only for clear error, and a

reviewing court must give due weight to any inferences drawn

from those facts by the fact finder. Ornelas, 517 U.S. at 699,

134 L. Ed. 2d at 920, 116 S. Ct. at 1663. In other words, we

give great deference to the trial court’s factual findings, and

we will reverse those findings only if they are against the

manifest weight of the evidence. People v. Sorenson, 196 Ill.

2d 425, 431 (2001). A reviewing court, however, remains free

to undertake its own assessment of the facts in relation to the

issues and may draw its own conclusions when deciding what

relief should be granted. People v. Pitman, 211 Ill. 2d 502,

512 (2004). Accordingly, we review de novo the trial court’s

ultimate legal ruling as to whether suppression is warranted.

Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at

1663; Pitman, 211 Ill. 2d at 512; Sorenson, 196 Ill. 2d at

431.” Luedemann, 222 Ill. 2d at 542-43.

People v. Cosby, No. 100681

Initially, we note that Cosby failed to file a posttrial motion

raising the issue of the trial court’s denial of his motion to suppress

evidence. Instead, his trial counsel filed only a motion to reconsider

sentence. The State argues that Cosby has therefore forfeited any

argument that the trial court erred in denying his motion to suppress.

It also argues that the appellate court should not have addressed

Cosby’s argument.

To preserve an alleged error for review, a defendant must raise a

timely objection at trial and raise the error in a written posttrial

motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). This long-
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standing rule is consistent with section 116–1 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/116–1 (West 2006) (governing

procedure for filing motion for new trial)) and serves the purpose of

allowing the trial court “ ‘the opportunity to grant a new trial, if

warranted.’ ” Enoch, 122 Ill. 2d at 186, quoting People v. Caballero,

102 Ill. 2d 23, 31-32 (1984). Nonetheless, in a criminal case, an issue

not properly preserved may still be raised on appeal under Supreme

Court Rule 615(a) (134 Ill. 2d R. 615(a)), which provides:

“Any error, defect, irregularity, or variance which does

not affect substantial rights shall be disregarded. Plain errors

or defects affecting substantial rights may be noticed although

they were not brought to the attention of the trial court.”

The appellate court did not engage in plain-error review. Instead,

the court reviewed Cosby’s forfeited argument “[b]ased on the

constitutional nature and underlying implication of the alleged error.”

This court conducted an extensive review of the plain-error rule

in People v. Herron, 215 Ill. 2d 167 (2005), where we stated:

“The plain-error doctrine, as it has developed in Illinois,

allows a reviewing court to reach a forfeited error affecting

substantial rights in two circumstances. First, where the

evidence in a case is so closely balanced that the jury’s guilty

verdict may have resulted from the error and not the evidence,

a reviewing court may consider a forfeited error in order to

preclude an argument that an innocent person was wrongly

convicted. [Citation.] Second, where the error is so serious

that the defendant was denied a substantial right, and thus a

fair trial, a reviewing court may consider a forfeited error in

order to preserve the integrity of the judicial process.

[Citations.] This so-called disjunctive test does not offer two

divergent interpretations of plain error, but instead two

different ways to ensure the same thing–namely, a fair trial.”

Herron, 215 Ill. 2d at 178-79.

The appellate court emphasized the constitutional nature of the

alleged error in deciding to review Cosby’s argument despite his

forfeiture. However, the mere fact that an alleged error affects a

constitutional right does not provide a separate ground for review, for

“even constitutional errors can be forfeited.” People v. Allen, 222 Ill.
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2d 340, 352 (2006). Thus, the appellate court erred in addressing

Cosby’s forfeited argument on this basis.

However, we note that the first step in plain-error review is to

determine whether error occurred. People v. Piatkowski, 225 Ill. 2d

551, 565 (2007) (“the first step is to determine whether error occurred

in the giving of the instruction”). Absent reversible error, there can be

no plain error. Herron, 215 Ill. 2d at 187; People v. Williams, 193 Ill.

2d 306, 349 (2000). Accordingly, we first determine whether any

error occurred in Cosby’s case.

The fourth amendment to the United States Constitution

guarantees the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const., amend. IV. In addition, article I, section 6, of

the Illinois Constitution of 1970 provides that “[t]he people shall have

the right to be secure in their persons, houses, papers and other

possessions against unreasonable searches, seizures, invasions of

privacy or interceptions of communications byeavesdroppingdevices

or other means.” Ill. Const. 1970, art. I, §6.

Initially, we must determine the proper framework for our

analysis. The United States Supreme Court has characterized the

detention by police of individuals during a traffic stop as a “seizure”

of “persons” within the meaning of the fourth amendment. Berkemer

v. McCarty, 468 U.S. 420, 436-37, 82 L. Ed. 2d 317, 332-33, 104 S.

Ct. 3138, 3148 (1984), citing Delaware v. Prouse, 440 U.S. 648, 653,

59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396 (1979). A person is

seized when, by means of physical force or a show of authority, the

person’s freedom of movement is restrained. United States v.

Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 509, 100 S. Ct.

1870, 1877 (1980). The Supreme Court further elaborated on that

point:

“We conclude that a person has been ‘seized’ within the

meaning of the Fourth Amendment only if, in view of all of

the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.

Examples of circumstances that might indicate a seizure, even

where the person did not attempt to leave, would be the

threatening presence of several officers, the display of a

weapon by an officer, some physical touching of the person
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of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be

compelled.” Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at

509, 100 S. Ct. at 1877.

This court adopted the Mendenhall factors in People v. Murray, 137

Ill. 2d 382, 390 (1990).

In Berkemer, a case involving the application of Miranda v.

Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), to

traffic stops, the Supreme Court observed that the “usual traffic stop”

is more analogous to a so-called Terry stop (see Terry v. Ohio, 392

U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) than to a formal

arrest. Berkemer, 468 U.S. at 439, 82 L. Ed. 2d at 334, 104 S. Ct. at

3150. However, the Court cautioned in a footnote that “[n]o more is

implied by this analogy than that most traffic stops resemble, in

duration and atmosphere, the kind of brief detention authorized in

Terry. We of course do not suggest that a traffic stop supported by

probable cause may not exceed the bounds set by the Fourth

Amendment on the scope of a Terry stop.” Berkemer, 468 U.S. at 439

n.29, 82 L. Ed. 2d at 334 n.29, 104 S. Ct. at 3150 n.29.

Nonetheless, this court and many other courts have analyzed

traffic stops under Terry principles, regardless of whether the initial

stop was supported by probable cause or reasonable suspicion. See,

e.g., People v. Gonzalez, 204 Ill. 2d 220 (2003) (and cases cited

therein); People v. Bunch, 207 Ill. 2d 7 (2003).

In Gonzalez, this court applied Terry principles to a traffic stop

during which a police officer requested identification from the

defendant, who was a passenger in the stopped vehicle. Citing

Berkemer, we noted that, because the usual traffic stop is more

analogous to a Terry investigative stop than to a formal arrest, a

fourth amendment challenge to the reasonableness of a traffic stop is

analyzed under Terry principles. A Terry analysis involves a dual

inquiry: (1) whether the officer’s action was justified at its inception,

and (2) whether the action was reasonably related in scope to the

circumstances that justified the interference in the first place.

Gonzalez, 204 Ill. 2d at 228-29. We concluded that the officers’ stop

of the vehicle was supported by probable cause. Thereafter, we set

forth an analytical framework to use in determining whether police

questioning during a traffic stop violates the fourth amendment. First,
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with respect to Terry’s scope requirement, a court must determine

whether the questioning is related to the initial justification for the

stop. If the questioning is so related, no fourth amendment violation

occurs. If the questioning is not reasonably related to the purpose of

the stop, the court must determine whether the officer had a

reasonable, articulable suspicion that would justify the questioning.

If so, there is no fourth amendment violation. In the absence of a

reasonable, articulable suspicion, the court must consider whether, in

light of the totality of the circumstances, the questioning

impermissibly prolonged the detention or changed the fundamental

nature of the stop. Gonzalez, 204 Ill. 2d at 235.

The State argues that this case is not controlled by Gonzalez.

Alternatively, the State also argues that if this court finds that a

Gonzalez analysis is required, we should reconsider Gonzalez and

overrule it as inconsistent with fourth amendment jurisprudence. The

State also contends thatGonzalez has been implicitly overruled by the

United States Supreme Court’s decision in Illinois v. Caballes, 543

U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005).

We have very recently held in People v. Harris, 228 Ill. 2d 222,

240 (2008), that our decision in Gonzalez has been “unequivocally

overruled” by the United States Supreme Court’s decision in Muehler

v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005). As

we noted in Harris, Muehler makes clear that the Court, in Caballes,

rejected the reasoning that led to this court’s adoption of the

“ ‘fundamental alteration of the nature of the stop’ ” portion of the

“ ‘scope’ ” prong of Gonzalez and that all that remains of the scope

prong is the “duration” portion of that analysis. Harris, 228 Ill. 2d at

242. Thus we overruled Gonzalez to the extent it holds that the

reasonableness of a traffic stop must be judged by whether the

officer’s conduct altered the fundamental nature of the stop. Harris,

228 Ill. 2d at 244.

The appellate court in Cosby’s case found that the traffic stop was

unreasonably prolonged. While Cosby argues before this court that

there was no break between the conclusion of the traffic stop and the

officer’s request for consent to search, we conclude that the record

does not support such an argument. The requests for consent to search

in both of the instant cases followed the officers’ returning of the

defendants’ paperwork. At that point, the traffic stops came to an end.
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The relevant question is whether the officers’ actions after the initial

traffic stops had concluded constituted a second seizure of either

defendant.

Thus, the question before us in Cosby’s case is whether Kaus’

request to search Cosby’s car after the traffic stop had ended

constituted a new seizure for fourth amendment purposes. We analyze

this question under the principles set forth in Brownlee and

Mendenhall.

In Brownlee, the defendant was a passenger in a car stopped by

two police officers for traffic violations. After securing identification

from the driver and all passengers and determining that no

outstanding warrants existed, the officers decided not to issue any

traffic citations. The officers returned to the car, one on each side.

One officer returned to the driver his driver’s license and insurance

card and explained that no citations would be issued. Then, the

officers paused for a couple of minutes, saying nothing. They

continued to stand one on each side of the car. Following this pause,

one of the officers requested permission to search the car. The driver

asked whether he had a choice in the matter, to which the requesting

officer answered that he did. The driver consented to the search. The

officers found marijuana and an open beer bottle in the car. The

officers arrested the car’s occupants and, during a search of the

defendant’s person incident to her arrest, they found cocaine. People

v. Brownlee, 186 Ill. 2d 501, 506-07 (1999).

The trial court granted the defendant’s motion to quash her arrest

and suppress evidence; the appellate court reversed and remanded.

Applying Terry principles to the officers’ actions following the

conclusion of the traffic stop, this court concluded that the officers

effected a seizure of the car’s occupants by flanking the car while

saying nothing for a period of two minutes. Citing Mendenhall, we

noted that a person is seized when, in view of all the facts and

circumstances, the person would not feel free to leave. Brownlee, 186

Ill. 2d at 517. Because the officers had no probable cause or

reasonable suspicion to detain the occupants, this show of authority

constituted an illegal seizure in violation of the fourth amendment.

Under the circumstances, this court found that a reasonable person

would have concluded that he or she was not free to leave. Brownlee,

186 Ill. 2d at 520.
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We do not find the presence of any of the Mendenhall factors in

Cosby’s case. Cosby argues that the presence of two police officers

suggests coercion. That there were two officers present here,

however, does not weigh in favor of finding a seizure. Mendenhall

referenced the presence of “several” officers. In Luedemann, one

officer approached a parked car in which the defendant was sitting.

When the officer observed signs of intoxication, he radioed for

backup. Another officer arrived on the scene and the officers

approached the defendant’s car, one on each side. In discussing

whether the defendant was seized by the officers’ actions, this court

noted that none of the Mendenhall factors were present. Luedemann,

222 Ill. 2d at 553. It is clear, then, that the presence of only two

officers, without more, is not a factor that would indicate a seizure

occurred.

There is no indication in the record that either of the officers

touched Cosby’s person, that they displayed their guns, or that Kaus

used language or a tone of voice indicating to Cosby that he had no

choice but to consent to the search of his car. Cosby emphasizes that

Kaus did not tell him that he was free to leave prior to requesting

consent to search. However, while this is a factor to consider, the

Supreme Court has held that such advice is not required. See Ohio v.

Robinette, 519 U.S. 33, 35, 136 L. Ed. 2d 347, 352, 117 S. Ct. 417,

419 (1996).

Cosby also argues that he did not feel free to leave because Kaus

treated the request to search as if it were part of the traffic stop. Cosby

maintains that the officer asked for consent to search “in the same

breath” as he explained the warning and returned Cosby’s paperwork

to him. According to Cosby, this made it less likely that he would feel

free to leave. However, the appellate court’s recitation of the

stipulated police report that formed the basis of the suppression

hearing does not support this argument. In addition, at Cosby’s trial,

Kaus simply testified that he “explained the nature of the written

warnings for no license plate light. I gave him back his paperwork,

and then I asked him consent to search the Pontiac.” This testimony

simply indicates that shortly after returning Cosby’s paperwork to

him, Kaus requested consent to search the car.

Cosby further argues that all of the circumstances of the traffic

stop, taken together, strongly suggest that he was not free to leave at
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the time Kaus requested consent to search. Cosby highlights the

following: (1) the presence of two officers; (2) the stop took place in

the early morning hours in a deserted and poorly lit locale; and (3) the

officers’ “double teaming” of Cosby at his car at the time of the

request. Cosby asserts that the two officers were standing on either

side of his car at the time Kaus requested to search the car. However,

the record contains no suggestion that the officers surrounded the car,

as Cosby claims. Thus, Cosby’s citation of this court’s decision in

People v. Gherna, 203 Ill. 2d 165 (2003), is unavailing. There, two

police officers on bicycles positioned themselves on either side of the

defendant’s truck, questioned the defendant and her daughter about

their identities, and eventually asked the defendant to exit the vehicle

for further questioning. This court held that, under the totality of the

circumstances, these actions constituted a show of authority to which

a reasonable person would feel compelled to submit. We noted that

the positioning of the officers and their bicycles prevented the

defendant from either exiting her vehicle or driving away. Gherna,

203 Ill. 2d at 180.

In his partial concurrence and partial dissent, Justice Freeman

accuses the majority of relying exclusively on the factors set forth in

the Mendenhall decision in determining that Cosby was not seized

when he was asked for consent to search his car. The dissent quotes

our decision in Luedemann, where we said that the Mendenhall

factors “ ‘are not exhaustive and that a seizure can be found on the

basis of other coercive police behavior that is similar to the

Mendenhall factors.’ ” Slip op. at 27 (Freeman, J., concurring in part

and dissenting in part, joined by Kilbride and Burke, JJ.), quoting

Luedemann, 222 Ill. 2d at 557. The dissent observes that we noted

other factors in addition to those set forth in Mendenhall that may

indicate a seizure of the occupants “of a parked vehicle.” Luedemann

noted that courts have developed additional rules that are applicable

to “police approaches of occupants of parked vehicles.” Luedemann,

222 Ill. 2d at 557. Those factors include boxing the vehicle in,

approaching it on all sides by many officers, pointing a gun at the

suspect, and ordering the suspect to place his or her hands on the

steering wheel, or the use of flashing lights as a show of authority.

Luedemann, 222 Ill. 2d at 557.
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The additional factors, however, only apply to situations where

police approach a parked vehicle, which was the case in Luedemann.

The fact that Cosby’s car was parked on the side of the road after

Kaus effected a traffic stop does not make the additional factors

applicable. However, even were those factors to be applied, it is clear

that only one of them–flashing lights–is present in Cosby’s case. The

officers here did not box Cosby’s car in; both officers’ cars were

located behind Cosby’s car. His car was not approached on all sides

and there were two officers, not many. There is no evidence that

either officer pointed a gun at Cosby and no evidence that Cosby was

ordered to place his hands on the steering wheel.

The dissent complains that, by focusing on the Mendenhall factors

and by not considering the additional factors set forth in Luedemann,

the majority leaves the impression that the Mendenhall factors are the

exhaustive factors for determining whether a person is seized within

the meaning of the fourth amendment. The dissent is concerned that

our reliance upon the Mendenhall factors “calls into question the

continued viability of our analysis in Luedemann, a unanimous

decision that is less than two years old.” Slip op. at 30 (Freeman, J.,

concurring in part and dissenting in part, joined by Kilbride and

Burke, JJ.). It is true that the Mendenhall factors are not exhaustive

and that a seizure may be found on the basis of other coercive police

conduct similar to the Mendenhall factors. Luedemann, 222 Ill. 2d at

557. However, we note that Luedemann itself addressed the effect

that use of the Mendenhall factors has on the analysis of whether a

seizure occurred. We noted that this court, in Murray, adopted the

factors, reviewed each of the factors, found that they were absent, and

concluded that no seizure had occurred. Luedemann, 222 Ill. 2d at

553-54. In addition, Luedemann noted that this court in People v.

Smith, 214 Ill. 2d 338, 353-54 (2005), relied on the absence of the

Mendenhall factors to conclude that no seizure had taken place.

Luedemann, 222 Ill. 2d at 554. We further observed:

“Indeed, Mendenhall itself used an analysis based on the

absence of Mendenhall factors. The lead opinion listed the

four factors, noted their absence, and then concluded that no

seizure had occurred. [Citation.] From the very minute the

Mendenhall factors were created, courts have used their

absence to determine that seizures had not occurred.
-15-

Even in the absence of cases such asMendenhall, Murray,

and Smith, it would seem self-evident that the absence of

Mendenhall factors, while not necessarily conclusive, is

highly instructive. If those factors are absent, that means that

only one or two officers approached the defendant, they

displayed no weapons, they did not touch the defendant, and

they did not use any language or tone of voice indicating that

compliance with their requests was compelled. Obviously, a

seizure is much less likely to be found when officers approach

a person in such an inoffensive manner.” (Emphasis in

original.) Luedemann, 222 Ill. 2d at 554.

Despite the absence of any of the Mendenhall factors in Cosby’s

case, the dissent expresses the belief that we must look to the totality

of the circumstances to determine whether Cosby was seized at the

time Kaus asked him for consent to search his car. This court in

Luedemann addressed a similar contention which had been made by

the appellate court in that case:

“The appellate court believed that, because Mendenhall

stated that courts should look to the totality of the

circumstances in determining whether a seizure had occurred,

the court must conduct a ‘practical, realistic’ inquiry to

determine if a reasonable person would have felt free to leave

and that the court should not focus on rigid, technical rules

such as the Mendenhall factors. [Citation.] The problem with

this view is that, immediately after Mendenhall said that a

person is seized if ‘in view of all of the circumstances

surrounding the incident, a reasonable person would have

believed that he was not free to leave’ [citation], it elaborated

on how courts are to make that determination. The lead

opinion listed several factors that are generally indicative of

a seizure, said that in the absence of some such evidence

otherwise inoffensive contact between a member of the public

and the police is not a seizure, and then concluded that no

seizure had occurred because those factors were not present.

[Citation.] This court expressly adopted those factors in

Murray. The ‘in view of all the circumstances’ language must

be read in concert with, not in opposition to, the factors.

[Citation.] The factors illustrate what type of police conduct
-16-

would give a reasonable person an objective reason to believe

that he or she was not free to leave or was not free to decline

an officer’s requests.” Luedemann, 222 Ill. 2d at 554-55. 

The reality in Cosby’s case is that none of the Mendenhall factors

are present. Therefore, the dissent’s insistence that Cosby was seized

is not supported by the record.

The dissent faults the majority for not citing this court’s decision

in Bunch, which the dissent views as similar to Cosby’s situation.

However, in Bunch, the defendant was removed from the car and

directed to stand at the rear of the car alongside the handcuffed driver.

The officer stood a foot away from the defendant and shined his

flashlight in the defendant’s face, while asking him questions. This

court considered the officer’s actions to be coercive in nature and to

constitute a show of authority, such that, even though the traffic stop

had come to an end, the defendant was seized anew. Bunch, 207 Ill.

2d at 19-20. The facts in Bunch are not at all analogous to those in

Cosby’s case. Thus, Bunch provides no authority for the dissent’s

conclusion that Cosby was seized at the time Officer Kaus requested

permission to search.

The dissent also cites this court’s decision in Brownlee, which it

contends supports its conclusion. However, Brownlee is no more

applicable than Bunch. In Brownlee, after the driver had been handed

back his paperwork by one of the two officers and had been told that

no ticket would be issued, both officers, who were on opposite sides

of the vehicle, stood at their stations, saying nothing. After about two

minutes had elapsed, the officer standing next to the driver’s door

asked for permission to search the vehicle. After asking whether he

had a choice, the driver consented. This court held that the officers’

actions constituted a show of authority and that a reasonable person

in the driver’s position would not have felt free to leave. Thus, the

driver and his passengers were subjected to a seizure. Brownlee, 186

Ill. 2d at 520-21.

Here, the record shows only that Officer Kaus approached

Cosby’s vehicle, returned his paperwork and asked for consent to

search. There is no indication in the record that Kaus waited for any

particular period of time before asking for consent. Thus, Brownlee

is not analogous for two reasons–the record does not support any

inference that both officers flanked Cosby’s vehicle and there was no
-17-

show of authority like that in Brownlee, where both officers flanked

the vehicle and waited for two minutes before asking for consent to

search.

The dissent also criticizes our rejection of Cosby’s argument that

Officer Kaus extended the traffic stop beyond its lawful purpose

because he asked for consent to search nearly simultaneously with

returning Cosby’s identification and proof of insurance. The dissent

notes that, during argument on Cosby’s motion to suppress, the

prosecutor told the circuit court that Kaus “asked for consent and got

the consent almost immediately as he is handing the citation to the

defendant.” Slip op. at 22 (Freeman, J., concurring in part and

dissenting in part, joined by Kilbride and Burke, JJ.). Arguments, of

course, are not evidence. The prosecutor’s statement was an attempt

to answer defense counsel’s citation of Brownlee to the court as being

similar to Cosby’s case. Counsel had argued that the action of Officer

Kaus in calling for backup without any reasonable suspicion of

criminal activity was essentially a show of authority by Kaus

indicating to Cosby that he did not have the right to leave and that he

must consent to the search. The prosecutor’s statement was, at most,

his own interpretation of matters contained in the police report. We

do not know what is contained in the police report because it is not in

the record on appeal. However, we do know that, at the trial, no

testimony was elicited on direct or cross-examination as to the timing

of Officer Kaus’ request for consent to search as it related to the

returning to Cosby of his paperwork. Nothing in Kaus’ testimony

gives rise to any inference one way or the other. Accordingly, to the

extent the dissent’s conclusions about the duration of the traffic stop

and Cosby’s alleged seizure depend on the belief that Officer Kaus

simultaneously requested consent to search as he was handing Cosby

his paperwork, they are unsupported by the record. For all these

reasons, we respectfully disagree with the dissent’s conclusions.

Accordingly, applying the principles of Brownlee and

Mendenhall, we conclude that Cosby was not seized and that his

consent to search his car was therefore voluntary. The trial court’s

decision denying Cosby’s motion to suppress was therefore not in

error. Because no error occurred, we need not consider the application

of plain error to this appeal.
-18-

People v. Mendoza, No. 102584

Initially, we note that Mendoza has not filed an appellee’s brief

in this court. Nonetheless, we will decide the merits of this appeal

under the principles set forth in First Capitol Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (where the

record is simple and the claimed errors are such that the reviewing

court can decide them without the assistance of an appellee’s brief,

the court should address the merits of the appeal).

The trial court here applied the Gonzalez analysis to the facts

surrounding the traffic stop of Mendoza’s car and granted Mendoza’s

motion to suppress. While the appellate court agreed with the result

reached by the trial court, the appellate court disagreed as to the

application of Gonzalez to the facts of the case. The appellate court

concluded that, by its very terms, Gonzalez applies only to police

questioning during a traffic stop. The court noted that Gonzalez

involved police questioning of a passenger during the traffic stop,

whereas in the present case, the traffic stop had concluded prior to

Weber’s asking Mendoza for permission to search his car. Thus,

according to the appellate court, the proper inquiry is whether

Weber’s questions amounted to a second seizure. The court opined

that the proper analysis to apply to that inquiry is the one set forth by

this court in Brownlee. The court then concluded that Mendoza was

seized and the evidence recovered from his car must be suppressed.

Mendoza, 364 Ill. App. 3d at 574.

It is clear that the traffic stop of Mendoza’s car had come to an

end prior to the questioning of Mendoza by Weber. In addition, we

note there is no evidence that the officers unreasonably prolonged the

traffic stop beyond the time required to fulfill its initial purpose.

Therefore, we will apply the Brownlee analysis to Mendoza’s appeal.

The State argues that Mendoza was not seized when Weber asked

him if he had anything illegal in his car and requested consent to

search. According to the State, the traffic stop ended when Weber

returned Mendoza’s driver’s license and insurance card to him and

gave him a verbal warning. At that point, Mendoza was no longer

seized and he was free to leave. The State notes Mendoza’s refusal to

consent to a search of his car in support of its argument that Mendoza

was not restrained by Weber’s questions. The State further notes the

absence of any of the Mendenhall factors as support for its argument.
-19-

There is no question that the initial stop of Mendoza’s vehicle

was supported by probable cause. The officers observed that

Mendoza’s car had a tinted rear license plate cover and a bandana

hanging from the rearview mirror, which the officers believed

obstructed Mendoza’s view. As noted by the appellate court, these are

violations of the traffic laws. Once Weber returned Mendoza’s

driver’s license and insurance card to him, the purpose of the traffic

stop was concluded. At that point, Weber asked Mendoza if there was

anything illegal in his car, to which Mendoza replied that there was

not. Weber then requested consent to search Mendoza’s car. Mendoza

refused. Weber then advised Mendoza that he was free to leave.

The appellate court, in finding that Mendoza was seized, focused

on the following factors: (1) it was late at night; (2) the officers used

a flanking maneuver in approaching Mendoza’s car the second time;

(3) the officers were dressed in dark, special operations uniforms with

the word “POLICE” stenciled on them in large white letters; (4) the

officers’ guns were visible; and (5) Wiencek shined his flashlight into

Mendoza’s car. In view of these circumstances, the appellate court

concluded that a reasonable person would not have felt free to leave.

Mendoza, 364 Ill. App. 3d at 578.

As we have noted, the Supreme Court set forth in Mendenhall

certain factors the presence of which would tend to indicate that a

seizure had occurred. None of these factors are present in Mendoza’s

case. Again, these factors are: (1) the threatening presence of several

officers; (2) the display of a weapon by an officer; (3) some physical

touching of the person of the citizen; and (4) the use of language or

tone of voice indicating that compliance with the officer’s request

might be compelled. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at

509, 100 S. Ct. at 1877.

Here, there were only two officers present, not several. The

appellate court noted that the officers’ guns were visible. However,

it is well known that police officers carry guns. The mere fact that

they do so does not mean that they have thereby displayed the guns

in the manner contemplated by Mendenhall. In any event, we note

that Wiencek testified he did unholster his gun when he thought he

saw the butt of a gun on the floorboard of Mendoza’s car. However,

he testified that he did not display the gun to Mendoza. Neither

officer testified to any physical touching of Mendoza’s person.
-20-

Finally, there is no suggestion that either officer spoke to Mendoza in

such a manner as to convey to him the need for compliance with

Weber’s request to search the car. The absence of this last factor is

buttressed by the fact that Mendoza refused Weber’s request to

search, indicating that Mendoza did not feel the need to comply with

that request. The absence of all the Mendenhall factors strongly

suggests that Mendoza was not seized for fourth amendment

purposes.

The appellate court emphasized the fact that Weber did not tell

Mendoza that he was free to leave after returning his driver’s license

and insurance card to him. As we have stated, however, the fourth

amendment does not require that an officer do so. See Robinette, 519

U.S. at 35, 136 L. Ed. 2d at 352, 117 S. Ct. at 419. The appellate

court attached some significance to the fact that Wiencek shined his

flashlight into Mendoza’s car. However, we have previously rejected

an argument that shining a flashlight into a car at night is a factor to

be considered in determining whether a seizure occurred. See

Luedemann, 222 Ill. 2d at 560-61, citing Texas v. Brown, 460 U.S.

730, 739-40, 75 L. Ed. 2d 502, 512, 103 S. Ct. 1535, 1542 (1983).

We reject the appellate court’s conclusion that Mendoza was

seized by the officers’ words and actions following the return of his

driver’s license and insurance card. Accordingly, the subsequent

discovery of the gun, the second stopping of Mendoza’s car, and the

officers’ search of the car did not violate Mendoza’s fourth

amendment rights.

CONCLUSION

For the reasons stated, in the matter of People v. Cosby, No.

100681, we reverse the judgment of the appellate court and affirm the

judgment of the circuit court. In the matter of People v. Mendoza, No.

102584, we reverse the judgment of the appellate court, vacate the

order of the circuit court, and remand the cause to the circuit court for

further proceedings.

No. 100681–Appellate court judgment reversed;

circuit court judgment affirmed.

No. 102584–Appellate court judgment reversed;
-21-

circuit court order vacated;

cause remanded.

JUSTICE FREEMAN, concurring in part and dissenting in part:

In these consolidated cases, defendants were initially stopped by

law enforcement officers for minor traffic law infractions. At certain

points during their encounters with the officers, however, defendants

were asked to consent to having their vehicles searched for

contraband, and, in the case of defendant Cosby, to additionally agree

to a search of his person. In both cases, the majority holds that the

defendants were not seized by law enforcement officers at the time

they were requested to consent to a search and, therefore, the

provisions of the fourth amendment were not implicated. I strongly

disagree with the majority that Cosby was not seized at the time he

was asked to allow a consent search, as no reasonable person in his

position would have felt free to terminate the encounter. It is my view

that in Cosby’s case, the majority’s holding eviscerates the

protections afforded to citizens under the fourth amendment by

diluting the test used to such an extent that it no longer has meaning.

In addition, I am seriously concerned that the majority–rather than

providing needed guidance for our bench and bar with respect to this

important area of the law–has created additional confusion by failing

to harmonize our own precedent. Instead, the majority sends mixed

messages, leaving our lower court judges and practitioners with the

unenviable task of discerning the proper rules to apply. It is for this

reason that although I join the majority’s ultimate holding that

defendant Mendoza was not seized at the time he was asked for

consent, I cannot agree with the method of analysis employed to

arrive at that conclusion.

I. BACKGROUND

I begin my separate opinion with a short recitation of key

background facts gleaned from the record in People v. Cosby, No.

100681. I am compelled to do so because several pivotal facts are

absent from the opinion of the majority.

Cosby filed a motion to suppress evidence and, at the suppression

hearing, both the prosecutor and defense counsel stipulated to the

admission of the police report written by Plainfield police officer
-22-

Steven Kaus. Although counsel at the hearing described this report as

being two pages in length, the majority correctly observes that it is

not contained in the record on appeal. However, the transcript of

proceedings at the suppression hearing sheds light on the content of

this report through the arguments made by both parties on the motion.

Defense counsel noted that the report indicated that Officer Kaus

stopped defendant for having a burned-out rear registration light.

Defendant produced a speeding ticket in lieu of a license, as well as

an insurance card. Kaus returned to his squad car, found that

defendant’s license and insurance were valid, confirmed there were

no outstanding warrants for defendant’s arrest, and radioed for a

backup unit to come to the scene. Defense counsel stated that “[i]n his

report [Kaus] indicates that he did that [called for backup] for a

possible consent search.” When the second officer arrived at the

scene of the stop, Kaus returned to defendant his ticket and insurance

card and gave defendant a written warning citation. Defense counsel

noted that “now [defendant] has two police vehicles there.” Kaus then

asked for and received consent to search defendant’s car and

discovered what he believed to be drug paraphernalia.

The prosecutor did not quarrel with defense counsel’s recitation

of the facts as set forth in the police report. The prosecutor did further

stipulate, however, that “the report will indicate to the court the

officer asked for consent and got the consent almost immediately as

he is handing the citation to the defendant.” The trial court

subsequently denied defendant’s motion to suppress; no rationale,

however, was provided for this ruling. The report of proceedings in

the trial court on September 16, 2002, reveals that the entirety of the

trial court’s statement with respect to its ruling on defendant’s

suppression motion consists of the following single sentence: “Show

cause coming on on [sic] the Court’s decision as to the motion to

suppress, show motion to suppress is denied.”

Defendant’s case proceeded to trial, where Officer Kaus provided

testimony that offered additional details about his encounter with

defendant. Kaus testified that he was on patrol around 1:30 a.m. and

was alone in a marked squad car when he observed defendant driving

with a burned-out rear registration light. He stopped defendant on the

shoulder of a two-lane road, which had little or no traffic, as well as

poor lighting conditions with no overhead lights. Kaus stated that
-23-

during the entire time of the stop, his squad car not only had its

overhead flashing blue and red lights activated, but he also had his

spotlight turned on and directed at defendant’s car. He approached the

vehicle and asked defendant for his driver’s license and proof of

insurance. Defendant complied. Kaus returned to his squad car and

radioed for a backup officer to come to the scene because Kaus

thought there would be a possible consent search. It was Kaus’

custom to stay in his vehicle until the backup officer arrived. It took

approximately two minutes for him to check defendant’s

identification and insurance and to call for backup, and he waited

approximately an extra five minutes for his backup to arrive. The

second officer–Officer Klima–pulled his squad car behind Kaus’ car.

It was only after Klima arrived at the scene that Kaus then exited his

vehicle and reapproached defendant’s car. Kaus handed defendant’s

documents back to him and asked defendant for consent to search his

vehicle. Defendant agreed, and Kaus directed him to exit his car and

stand at the rear passenger side of the vehicle. Prior to conducting the

search of the car, however, Officer Kaus further asked defendant if he

would also consent to a search of his person. Defendant agreed and

removed the contents of his pockets, including a pack of cigarettes.

The officer examined defendant’s effects and, finding nothing

suspicious, returned them to him.

Kaus testified that he then proceeded to conduct a search of

defendant’s vehicle. According to Kaus, defendant remained near the

rear passenger side of the car in the company of Officer Klima while

Kaus searched the vehicle. Kaus found what he believed to be a crack

pipe in the car’s middle console. Defendant was placed under arrest

for possession of drug paraphernalia and transported to the police

station. There, Cosby again emptied his pockets–including the

cigarettes–and placed them in a tray. At the time Cosby was to post

bond and leave the station, Kaus completed an evidence report of

Cosby’s personal items and found four rocks of crack cocaine in the

cigarette pack. Defendant was then charged with unlawful possession

of a controlled substance, an offense of which he was subsequently

found guilty by a jury.

The appellate court, in an order unpublished under our Rule 23,

reversed the judgment of the trial court and vacated defendant’s

conviction. The court held, inter alia, that pursuant to this court’s
-24-

decision in People v. Gonzalez, 204 Ill. 2d 220 (2003), Kaus’

questioning of defendant with respect to the consent searches

unreasonably prolonged the duration of the stop and resulted in

defendant’s being illegally detained at the time he provided consent

to the search. In turn, the court held that the consent, the resulting

search and the subsequent arrest were tainted, and the fruits should

have been suppressed.

II. ANALYSIS

The facts presented in these consolidated cases give rise to two

threshold questions of law: whether defendants were seized within the

meaning of the fourth amendment when they were requested to

consent to searches by the officers, and, if so, whether that detention

was unlawful. It is my view that in the case of defendant Cosby, the

answer is yes. However, because the majority opinion fails to set forth

the proper analytical framework to be employed in answering these

questions, I am compelled to do so prior to discussing the application

of these principles to the facts presented.

A. Principles of Analysis

It is well settled that in reviewing a trial court’s ruling on a

motion to suppress evidence, we apply the two-part standard of

review set forth by the Supreme Court in Ornelas v. United States,

517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663

(1996). People v. Luedemann, 222 Ill. 2d 530, 542 (2006).

Accordingly, a trial court’s findings of historical fact should be

reviewed only for clear error, and a reviewing court must give due

weight to any inferences drawn from those facts by the fact finder.

Luedemann, 222 Ill. 2d at 542. In other words, great deference is

afforded to the factual findings made by the trial court, and,

accordingly, they will be reversed only if they are against the manifest

weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431

(2001). A reviewing court, however, remains free to undertake its

own assessment of the facts in relation to the issues and may draw its

own conclusions when deciding the proper relief to be granted.

Luedemann, 222 Ill. 2d at 542. Therefore, the trial court’s ultimate
 

1

I note that the majority, in its opinion, concedes that “[t]he trial court

denied the motion to suppress, but did not explain its reasoning.” Slip op.

at 2.

-25-

legal ruling as to whether suppression is warranted is reviewed de

novo. Luedemann, 222 Ill. 2d at 542-43.

As stated, in the matter at bar, although the trial court denied

Cosby’s suppression motion, it failed to make any specific factual

findings or credibility determinations in support of this legal holding.

Instead, the trial court simply stated that defendant’s “motion to

suppress is denied.”1 We have previously cautioned that

“for [the Ornelas two-part] standard of review to function as

it is intended, trial courts must exercise their responsibility to

make factual findings when ruling on motions to suppress.

Reviewing courts should not be required to surmise what

factual findings that the trial court made. Instead, the trial

court should make clear any factual findings upon which it is

relying. It is only through this synergy between the trial and

reviewing courts that appellate courts can develop a uniform

body of precedent to guide law enforcement officers in their

determination of whether their actions may violate the

constitution.” In re G.O., 191 Ill. 2d 37, 50 (2000).

Here, it is apparent that the trial court did not heed our admonishment

in G.O. with respect to setting forth the factual findings supporting its

decision on defendant’s motion to suppress. It is therefore unclear

upon what factual basis the trial court made the legal determination

that defendant’s suppression motion should be denied. I note that in

upholding the trial court’s judgment, the majority relies upon certain

aspects of the factual record–facts not specifically set forth by the trial

court in its ruling on the suppression motion–to conclude that Cosby

was not seized at the time Officer Kaus asked him to consent to a

search. I am in disagreement with this conclusion based upon my

view that the record fairly and reasonably leads to the contrary legal

conclusion that Cosby was unlawfully seized at the moment Kaus

requested that defendant allow a consent search.

It is well settled that a person is seized by the police and entitled

to challenge the actions of the officers under the protections of the
-26-

fourth amendment when the officer, “ ‘by means of physical force or

show of authority,’ ” terminates or restrains his freedom of

movement. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389,

398, 111 S. Ct. 2382, 2386 (1991), quoting Terry v. Ohio, 392 U.S.

1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16

(1968). Because a police officer may make a seizure solely by a show

of authority and without the use of physical force, “there needs to be

some test for telling when a seizure occurs in response to authority,

and when it does not.” Brendlin v. California, 551 U.S. ___, ___, 168

L. Ed. 2d 132, 138, 127 S. Ct. 2400, 2405 (2007). The United States

Supreme Court recently reaffirmed in Brendlin that this test has its

roots in Justice Stewart’s principal opinion in United States v.

Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1879 (1980),

wherein he wrote that “a seizure occurs if ‘in view of all of the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.’ ” Brendlin, 551 U.S. at

___, 168 L. Ed. 2d at 138, 127 S. Ct. at 2405, quoting Mendenhall,

446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. Brendlin

noted that subsequent to Mendenhall, “the Court adopted Justice

Stewart’s touchstone [citations] but added that when a person ‘has no

desire to leave’ for reasons unrelated to the police presence, the

‘coercive effect of the encounter’ can be measured better by asking

whether ‘a reasonable person would feel free to decline the officers’

requests or otherwise terminate the encounter.’ ” Brendlin, 551 U.S.

at ___, 168 L. Ed. 2d at 138, 127 S. Ct. at 2405, quoting Bostick, 501

U.S. at 435-36, 115 L. Ed. 2d at 399, 111 S. Ct. at 2387; see also

People v. Luedemann, 222 Ill. 2d 530, 548 (2006).

As stated, in conducting this inquiry, the United States Supreme

Court has reaffirmed that a court must consider “ ‘all of the

circumstances surrounding the incident’ ” (Brendlin, 551 U.S. at ___,

168 L. Ed. 2d at 138, 127 S. Ct. at 2405, quoting Mendenhall, 446

U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877), meaning that the

court “must assess the coercive effect of police conduct taken as a

whole.” Luedemann, 222 Ill. 2d at 555 n.6, citing Michigan v.

Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 572, 108 S. Ct.

1975, 1979 (1988). The Mendenhall Court set forth examples of

circumstances that may indicate a seizure, including the “threatening

presence of several officers, the display of a weapon by an officer,
 

2According to Professor LaFave, these examples highlight “why vehicle

stops are generallyviewed as seizures while pedestrian encounters typically

are not.” 4 W. LaFave, Search & Seizure §9.4(a), at 436-38 (4th ed. 2004).

-27-

some physical touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance with the

officer’s request might be compelled.” Mendenhall, 446 U.S. at 554,

64 L. Ed. 2d at 509, 100 S. Ct. at 1877 (principal op.). We have

recently held, however, that the factors set forth in Mendenhall “are

not exhaustive and that a seizure can be found on the basis of other

coercive police behavior that is similar to the Mendenhall factors.”

Luedemann, 222 Ill. 2d at 557; see also People v. Bunch, 207 Ill. 2d

7, 20 (2003) (absence of the Mendenhall factors are not conclusive,

as an officer’s show of authority may be manifested in other ways).

Our opinion in Luedemann adopted several examples set forth by

Professor LaFave in his fourth amendment treatise–in addition to

those listed in Mendenhall–that may be indicative of a seizure of an

individual who is approached by officers while seated in a parked

vehicle: “ ‘boxing the car in, approaching it on all sides by many

officers, pointing a gun at the suspect and ordering him to place his

hands on the steering wheel, or use of flashing lights as a show of

authority.’ ” Luedemann, 222 Ill. 2d at 557, quoting 4 W. LaFave,

Search & Seizure §9.4(a), at 434-45 (4th ed. 2004).2 The analysis of

whether an individual is seized for purposes of the fourth amendment

requires an objective evaluation of the police conduct in question and

does not turn upon the subjective perception of the person involved.

Luedemann, 222 Ill. 2d at 551.

It is well settled that a traffic stop entails a seizure within the

meaning of the fourth amendment “ ‘even though the purpose of the

stop is limited and the resulting detention quite brief.’ ” Brendlin, 551

U.S. at ___, 168 L. Ed. 2d at 138, 127 S. Ct. at 2406, quoting

Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667, 99 S.

Ct. 1391, 1396 (1979); see also Bunch, 207 Ill. 2d at 13. Vehicle

stops are subject to the fourth amendment’s requirement of

reasonableness, which is analyzed underTerry principles. Bunch, 207

Ill. 2d at 13-14; Gonzalez, 204 Ill. 2d at 228. This involves a dual

inquiry: “whether the officer’s action was justified at its inception,”

and “whether it was reasonably related in scope to the circumstances
 

3As the majority notes, our decision in Harris partially overruled

Gonzalez to the extent that Gonzalez held that the reasonableness of the

traffic stop must–in addition to its duration–be judged by whether the

officer’s conduct altered the fundamental nature of the stop. Harris, 228 Ill.

2d at 244. It is clear, however, that Harris preserves the duration prong as

the focus of the Terry scope inquiry. 

-28-

which justified the interference in the first place.” Terry, 392 U.S. at

19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879. As we recently held in

People v. Harris, No. 103796, slip op. at 16 (March 20, 2008), the

scope prong of Terry examines the duration of the detention, and

requires that it not be “unreasonably prolonged.”3 See also Brendlin,

551 U.S. at ___, 168 L. Ed. 2d at 138, 127 S. Ct. at 2406. It is also

well settled that a seizure that is lawful at its inception can

nevertheless violate the fourth amendment “if the manner of

execution unreasonably infringes interests protected by the

constitution.” Illinois v. Caballes, 543 U.S. 405, 407, 160 L. Ed. 2d

842, 846, 125 S. Ct. 834, 837 (2005). For example, “[a] seizure that

is justified solely by the interest in issuing a warning ticket to the

driver can become unlawful if it is prolonged beyond the time

reasonably required to complete that mission.” Caballes, 543 U.S. at

407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837.

In the matters at bar, no issue exists concerning the lawfulness of

the initial stops of the vehicles. Rather, these appeals concern the

constitutional propriety of the conduct of the officers following the

initial stops. Where an officer asks a motorist questions about

contraband or consent to search the vehicle after a valid detention, the

inquiry is whether the consent to search was valid, which, in turn,

rests upon whether the consent was voluntary. Ohio v. Robinette, 519

U.S. 33, 40, 136 L. Ed. 2d 347, 354, 117 S. Ct. 417, 421 (1996).

“ ‘[V]oluntariness is a question of fact to be determined, from all of

the circumstances.’ ” Robinette, 519 U.S. at 40, 136 L. Ed. 2d at 354,

117 S. Ct. at 421, quoting Schneckloth v. Bustamonte, 412 U.S. 218,

248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059 (1973). This

inquiry, therefore, dovetails with the question of whether the motorist

was seized at the time the officer asked the questions and whether

that seizure was reasonable. A consent obtained during an illegal

detention is ordinarily ineffective to justify an otherwise invalid
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search: “statements given during a period of illegal detention are

inadmissible, even though voluntarily given, if they are the product

of the illegal detention and not the result of an independent act of free

will.” Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 228, 238-39,

103 S. Ct. 1319, 1326 (1983) (plurality op.); see also Bostick, 501

U.S. at 433-34, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386 (if consent

was given during the course of an unlawful seizure, the results of the

search must be suppressed as tainted fruit).

B. Application to the Cases at Bar

In its opinion, the majority’s analysis as to both Cosby and

Mendoza centers exclusively upon the four Mendenhall factors. The

court holds that none of the four factors are present in either of

defendants’ cases and summarily concludes that defendants were not

seized at the time they were asked for consent to submit to a search.

However, as I have just noted, not only has the United States

Supreme Court in Brendlin reaffirmed that a court must assess “all of

the circumstances surrounding the incident” to determine whether an

individual is seized, but this court has also recently and unanimously

held in Luedemann that the Mendenhall factors are not exhaustive in

determining whether a defendant is seized for purposes of the fourth

amendment. It is only in response to the concerns raised in this

separate opinion that the majority acknowledgesthat Luedemann held

that the Mendenhall factors are not exhaustive and that a seizure can

be found on the basis of other coercive police behavior that is similar

to the Mendenhall factors. Slip op. at 14-15. Nevertheless, the

majority statesthat the “additional factors” noted in Luedemann “only

apply to situations where police approach a parked vehicle” and that

“[t]he fact that Cosby’s car was parked on the side of the road after

Kaus effected a traffic stop does not make the additional factors

applicable.” Slip op. at 14. I disagree. Luedemann determined that the

analytical framework for assessing whether an individual is “seized”

within the meaning of the fourth amendment differs depending upon

whether that person is walking down the street as a pedestrian or

whether his “freedom of movement is restrained by some factor

independent of police conduct.” Luedemann, 222 Ill. 2d at 550. In the

former instance, the correct test is to determine whether, in view of

all the circumstances, a reasonable person would feel “free to leave.”
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Luedemann, 222 Ill. 2d at 550. However, in the latter instance–i.e.,

where a person’s movement is restrained by a factor independent of

police conduct such as here, where a person encounters a law

enforcement officer while the person is seated in a car–the “free to

leave” test is inappropriate. Rather, the “ ‘appropriate inquiry is

whether a reasonable person would feel free to decline the officers’

requests or otherwise terminate the encounter.’ ” Luedemann, 222 Ill.

2d at 550, quoting Bostick, 501 U.S. at 436, 115 L. Ed. 2d at 400, 111

S. Ct. at 2387 (applying standard to persons seated on a bus boarded

by law enforcement officers). It is in distinguishing an encounter

between officers and a pedestrian as opposed to an encounter between

officers and a person seated in a car that Luedemann underscored that

different analytical questions are presented. Where the latter factual

situation is presented, Luedemann cited with approval Professor

LaFave’s four examples–in addition to theMendenhallfactors–as part

of the analysis in determining whether a particular defendant was

seized. Despite the fact that it is apparent that the Luedemann analysis

applies to the facts in the matter at bar because defendant encountered

the police not as a pedestrian but rather under circumstances wherein

his “freedom of movement [was] restrained by some factor

independent of police conduct”–namely, that he was seated in his

car–the majority now states that the analysis in Luedemann is not

applicable to Cosby’s case. The majority reasons that even though

Cosby was seated in his car at the time of the encounter, his car was

parked on the side of the road as a result of a traffic stop, rather than

being approached by police when he was already parked. This narrow

reading of Luedemann is unsupportable. Contrary to the United States

Supreme Court’s decision in Brendlin and our recent pronouncement

in Luedemann, the majority’s opinion today leaves the clear–albeit

incorrect–impression that the Mendenhall factors are the exhaustive

factors for determining whether a person is seized within the meaning

of the fourth amendment. I am concerned that the majority’s analysis

unnecessarily calls into question the continued viability of our

analysis in Luedemann, a unanimous decision that is less than two

years old.

The majority compounds its analytical errors by rejecting Cosby’s

assertion that his traffic stop violated the scope prong of Terry based

upon its unreasonable duration. The majority notes that Cosby
 

4

I note that the use of flashing lights as a show of authority is one factor

specifically set forth in Luedemann that is indicative of a seizure.

Luedemann, 222 Ill. 2d at 557.

 

5Although the majority attempts to minimize the presence of Officer

Klima at the scene of the stop by noting that Officer Kaus testified that

Klima usually “handled the tow duties and such,” it is well settled that it is

an officer’s objective conduct–and not his subjective intentions–that is

relevant to determining whether seizure has occurred. People v. Smith, 214

Ill. 2d 338, 355 (2005), citing Michigan v. Chesternut, 486 U.S. 567, 575

n.7, 100 L. Ed. 2d 565, 573 n.7, 108 S. Ct. 1975, 1980 n.7 (1988). Here, it

is undisputed that Klima arrived at the scene of the traffic stop prior to

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maintains that Officer Kaus improperly treated the request to search

defendant’s vehicle as if it were part of the traffic stop, because, in

Cosby’s words, Kaus asked for consent to search “in the same breath”

as he explained the warning and returned his paperwork to him, and

that this unreasonably prolonged Cosby’s detention. The majority

summarily rejects Cosby’s assertion, stating that “the record does not

support such an argument.” Slip op. at 10. I strongly disagree.

The record reflects that defendant Cosby was stopped because he

had a burned-out rear registration light. Officer Kaus wrote defendant

a warning citation for this minor infraction and had no reasonable

suspicion that defendant was involved in any other criminal activity.

Nevertheless, Kaus radioed for a backup unit to come to the scene of

the stop and waited for Officer Klima to arrive before Kaus returned

to defendant’s vehicle to ask for defendant’s consent to search his

vehicle. Defendant was not only asked for his consent immediately

after a second police vehicle arrived at the scene and pulled up behind

Kaus’ squad car, which had its flashing emergency lights and

spotlight activated throughout the entire encounter,4 but also after the

presence of a second officer at the scene was established, and while

Kaus was in the course of returning defendant’s paperwork and

explaining the warning citation. Contrary to the majority’s holding,

the record amply supports defendant’s argument that although the

justification for the initially lawful traffic stop had concluded, the

seizure of defendant nevertheless continued–and, in fact, escalated

through an increased show of authority by virtue of the appearance of

a second police officer and vehicle

5

–at the time Kaus asked defendant
Kaus’ reapproaching Cosby’s vehicle to ask him for a consent search, and

that Klima was present with defendant at the rear passenger area of

defendant’s car immediately after Kaus obtained Cosby’s consent. It is this

objective conduct–and not any alleged subjective intentions

uncommunicated to defendant–which is relevant to the analysis.

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to agree to allow a search of his car absent any reasonable or

articulable suspicion for continuing the seizure. Indeed, the

prosecutor’s own stipulation during Cosby’s suppression hearing that

“the officer asked for consent and got the consent almost immediately

as he is handing the citation to the defendant,” combined with Kaus’

testimony at trial, confirms that the request for defendant to allow a

vehicle search was made while defendant was seized as a result of the

traffic stop by the two officers.

It is well settled that “an investigative detention must be

temporary and last no longer than is necessary to effectuate the

purpose of the stop.” Royer, 460 U.S. at 500, 75 L. Ed. 2d at 238, 103

S. Ct. at 1325 (plurality op.); Brownlee, 186 Ill. 2d at 519. It is against

this background that I observe that Kaus candidly testified that his

intent to ask defendant to “consent” to a vehicle search was

formulated prior to his returning defendant’s documents and

motivated him to call for a backup unit–a series of events which Kaus

testified caused him to wait in his car for a period of approximately

five minutes until Officer Klima arrived at the scene. This period of

time–coupled with the additional few minutes Kaus testified it took

him to check defendant’s documents and prepare the warning–meant

that defendant was detained for nearly 10 minutes to receive a

warning for a burned-out rear registration light. I note that it is the

State which “bears the burden of showing that a seizure based on

reasonable suspicion was sufficiently limited in scope and duration

to satisfy the conditions of an investigative seizure.” Royer, 460 U.S.

at 500, 75 L. Ed. 2d at 238, 103 S. Ct. at 1326 (plurality op.);

Brownlee, 186 Ill. 2d at 519. In Cosby’s case, the conclusion is

inescapable that he remained seized as a result of the traffic stop at

the time of the search request, even though the justification for that

stop had concluded. The continued detention was of unreasonable

duration, as the officers lacked reasonable suspicion of any illegal

activities on the part of defendant to continue to detain him. As
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Caballes makes crystal clear, a seizure that is lawful at its

inception–i.e., here, the valid traffic stop–can nevertheless violate the

fourth amendment “ifthemanner of execution unreasonably infringes

interests protected by the constitution,” i.e., if the seizure “is

prolonged beyond the time reasonably required to complete that

mission.” (Emphasis added.)Caballes, 543 U.S. at 407, 160 L. Ed. 2d

at 846, 125 S. Ct. at 837. Under the facts presented, a reasonable

person in Cosby’s position would not believe that the investigative

stop had been concluded and that he was free to terminate the

encounter, so long as additional police presence was called to the

scene and Officer Kaus was continuing to ask investigative questions

while returning defendant’s paperwork and warning citation for the

original stop. Thus, contrary to the holding of the majority, the record

clearly establishes that the continued detention of Cosby was of an

unreasonable duration and constituted an illegal seizure.

The majority, however, finds that because Kaus returned Cosby’s

paperwork to him, this automatically signaled that the traffic stop

“came to an end,” and, therefore, the “relevant” question is whether

the actions of the officers after the conclusion of the initial stop

constituted a new, second seizure of defendant for purposes of the

fourth amendment. Slip op. at 10-11. First, as explained, I disagree

with the majority’s summary finding that the traffic stop had

concluded when the request to search defendant’s vehicle was made.

Indeed, I note that the majority contradicts itself on this point within

its opinion when, after stating–as noted above–that the traffic stop

had come to an end prior to Officer Kaus’ request to defendant to

allow a search of his vehicle, it subsequently states that after Kaus

returned defendant’spaperwork, “[t]here is no indication in the record

that Kaus waited for any particular period before asking for consent.”

Slip op. at 19. Second, assuming arguendo that the traffic stop had

concluded, the majority still errs by holding that defendant was not

subject to a second seizure under the circumstances presented.

As stated, the majority improperly treats the Mendenhall factors

as the exhaustive inquiry in determining whether a seizure has

occurred. I further note that in discussing these factors, the court

unduly narrows their application by interpreting them in an overly

technical manner. For example, the majority notes that one factor to

consider under Mendenhall is the presence of “several” officers and
 

6

I note that the continued validity of our decision in Bunch was

reaffirmed in Harris. See Harris, 228 Ill. 2d at 244 n.3.

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states that “[i]t is clear *** that the presence of only two officers,

without more, is not a factor that would indicate a seizure occurred.”

Slip op. at 12. I question whether the majority has now adopted a

bright-line rule which stands for the proposition that under any

circumstances the presence of two officers will never be considered

to have a coercive effect, despite our prior case law which has found

that defendants have been seized under the totality of all the

circumstances in instances where the encounter involved only one or

two officers, and not more. See, e.g., Bunch, 207 Ill. 2d at 19-20

(defendant found to be “seized” during a traffic stop where defendant

had an encounter with one police officer); People v. Gherna, 203 Ill.

2d 165, 180-81 (2003) (defendant found to be “seized” during a

traffic stop when approached by two officers); Brownlee, 186 Ill. 2d

at 520-21 (same).

It is my view that this court’s decisions in Bunch and Brownlee

are factually analogous to Cosby’s case, support his contention that

his suppression motion should have been granted, and that the

majority’s attempt to distinguish these cases is unpersuasive. For

example, in Bunch, this court found that the officer’s continued

questioning of the defendant after the purpose of the traffic stop had

been concluded “prolonged defendant’s detention beyond the

completion of the purpose of the stop.” Bunch, 207 Ill. 2d at 17. Since

the officer’s conduct in Bunch occurred after the justification for the

traffic stop ended, this court looked to whether the officer’s

questioning of the defendant was related to the traffic stop or

supported by a separate, reasonable, articulable suspicion of criminal

conduct. Finding none, the court concluded that defendant had been

unreasonably seized by the officer.6 This is similar to the facts in the

matter at bar, where defendant’s detention was unduly prolonged to

allow the arrival of a backup officer at the scene which escalated the

show of authority absent any reasonable basis, and where Kaus

continued to question defendant after the purpose of the traffic stop

had been concluded.
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Similarly, in Brownlee, this court held that the defendant was

unlawfully seized after the justification for the traffic stop had ended,

where the two officers continued to flank both sides of the vehicle

after returning the motorist’s documents and stating that no citations

would be issued, paused for a “couple of minutes,” and then

requested that the occupants agree to a consent search. We held that

under those circumstances, “the officers’ actions constituted a show

of authority,” and that a reasonable person “would likely conclude

that, if he or she drove away, then the two officers would soon be in

hot pursuit.” Brownlee, 186 Ill. 2d at 520. The majority attempts to

distinguish Brownlee on the basis that unlike the couple-minute delay

occasioned by the officers in that case, here there “is no indication in

the record that Kaus waited for any particular period of time before

asking for consent” from Cosby. Slip op. at 19. As noted, however,

this statement contradicts the position taken by the majority earlier in

its opinion, wherein it finds that there was a break between the

conclusion of the traffic stop and Kaus’ request to Cosby to allow a

search, and rejects precisely the same argument it now embraces,

writing: “While Cosby argues before this court that there was no

break between the conclusion of the traffic stop and the officer’s

request for consent to search, we conclude that the record does not

support such an argument.” Slip op. at 10. I submit that the majority

cannot have it both ways.

Of course, questioning by law enforcement officers does not alone

effectuate a seizure. However, if the circumstances surrounding the

questioning “are so intimidating as to demonstrate that a reasonable

person would have believed he was not free to leave if he had not

responded,” such questioning can result in a detention under the

fourthamendment. Immigration & Naturalization Service v.Delgado,

466 U.S. 210, 216, 80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1762

(1984); see also Bunch, 207 Ill. 2d at 19-20; Brownlee, 186 Ill. 2d at

520-21. In my view, a reasonable person in the position of Cosby

would not have believed he was free to terminate the encounter and

drive away: Cosby was stopped in the early morning hours on a

poorly lit and seldom traveled road; he was forced to wait an

extended period until a backup officer arrived at the scene; two police

cars with at least one having flashing emergency lights and an

illuminated spotlight were parked behind his car; he was in the
 

7Although the majority notes that it is not constitutionally required to

tell a motorist that he or she is free to leave before asking for consent to

search the motorist’s car, knowledge of the right to refuse to consent is one

factor to be taken into account in assessing the totality of the

circumstances. Robinette, 519 U.S. at 39, 136 L. Ed. 2d at 355, 117 S. Ct.

at 421.

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presence of two officers, with one having been called to the scene

during the stop, which escalated the show of authority; he was asked

to agree to a search of his vehicle as he was being handed back his

documents and informed about the warning; and at no point was he

told he was free to leave.7 Under the totality of the circumstances, a

reasonable person would not feel free to terminate the encounter and

go about his business. In sum, Cosby was seized. See Bunch, 207 Ill.

2d at 19-20; Brownlee, 186 Ill. 2d at 520-21. The seizure was

unreasonable because the officers had no reasonable or articulable

suspicion that Cosby was engaged in wrongdoing. Accordingly,

Cosby’s subsequent “consent” to the search of his vehicle and his

person was the product of an unlawful detention. In turn, Cosby’s

arrest was tainted, and the fruits of the encounter should have been

suppressed. The majority’s holding to the contrary merely pays lip

service to the applicable analytical principles, and, by doing so,

renders them meaningless.

I note two final points with respect to defendant Cosby’s case. As

stated earlier, the majority opinion completely omits a number of key

background facts with respect to Cosby’s case in order to reach its

desired legal conclusion. The majority opinion omits from its

“Background” that Kaus testified that he stopped defendant on a twolane road with little or no traffic and poor lighting conditions with no

overhead lights. Kaus’ testimony indicates that he had his squad car’s

overhead emergency lights and spotlight activated for the duration of

the stop. Kaus also testified that it was his custom to remain in his

squad car until the backup officer arrived. After the backup

officer–Officer Klima–arrived at the scene, he pulled his car behind

Kaus’ vehicle. Kaus testified that it was only then that he

reapproached defendant, asked him to consent to search his car, and

asked defendant to get out of the car and stand at the rear passenger

side of the vehicle. Kaus further testified that when defendant stood
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at the rear passenger side of his car, defendant was in the presence of

Officer Klima and was speaking with him.

Based upon Kaus’ testimony, at the time that Kaus reapproached

Cosby’s car, asked for a consent search, and directed Cosby out of his

vehicle, it is apparent that Officer Klima was not only present at the

scene, but that he was also standing outside of his own police vehicle

at the passenger side of defendant’s car. It is my view that the only

fair and reasonable inference which can be drawn from Officer Kaus’

testimony is that both officers had exited their cars and approached

defendant’s vehicle, with one on each side of his car during this

period. It is also fair and reasonable to draw an inference from Kaus’

testimony that he called for a backup unit and deliberately remained

in his vehicle until Klima arrived for the purpose of having an

additional officer at the scene of the stop–and an increased show of

authority–at the time he planned to ask defendant for consent to

search. It is also a fair and reasonable inference that the backup

officer arrived at the scene in a police squad car and that the police

vehicles would have had their lights activated; indeed, a contrary

inference would seem unreasonable. I note that the trial court set forth

no factual findings to dispute these reasonable inferences. I have

evaluated the facts of record, and, after considering those facts against

our own precedent (i.e., Luedemann) and that of the United States

Supreme Court (i.e., Brendlin, Mendenhall), have reached a legal

conclusion that is contrary to that of the majority.

Second, I note that although Cosby was pulled over for a minor

traffic violation and issued a warning citation, Officer Kaus freely

admitted that he formulated an intent to ask Cosby for a consent

search prior to returning his documents to him. I am troubled by the

specter of routine traffic stops being regularly transformed into socalled “consensual” contraband searches where there is no reasonable

or articulable basis to suspect criminal wrongdoing. The fourth

amendment exists to protect citizens against such an unreasonable

interference with their liberty. The majority’s holding with respect to

defendant Cosby stands for the proposition that, following the

conclusion of a lawful traffic stop, officers may detain a vehicle

absent reasonable suspicion of any illegal activity and for any amount

of time, so long as they ultimately request and obtain “voluntary
-38-

consent” to search the car. As I cannot countenance such a rule, I

dissent in part from the opinion of the majority.

The unreasonableness of the police conduct in Cosby’s case is

highlighted by the factual differences between his case and that of

defendant Mendoza. As stated, I disagree with the majority’s

exclusive use of the Mendenhall factors in deciding defendant’s

constitutional challenge. However, viewing the totality of the

circumstances presented, there is a significant difference in the extent

of the coercive effect of the police conduct as a whole between the

cases of Cosby and Mendoza. Unlike in the case of Cosby, the facts

indicate that for Mendoza the traffic stop had come to an end at the

time that he was asked to consent to a search of his vehicle. In

addition, the record reflects that the additional questions and answers

took less than 30 seconds. Under these circumstances, Mendoza

exercised his right to refuse the request of the officers, to terminate

the encounter, and to go about his business and drive away. The

officers happened to be in a place where they lawfully had a right to

be, during this consensual encounter, where they then observed in

plain view what appeared to be a handgun in Mendoza’s vehicle. The

officers, seeing the gun in plain view, at that point had probable cause

to detain defendant for violation of the offense for which he was

charged and ultimately convicted: aggravated unlawful use of a

weapon (720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2002)). See

Coolidge v. New Hampshire, 403 U.S. 443, 465, 29 L. Ed. 2d 564,

582, 91 S. Ct. 2022, 2037 (1971) (under certain circumstances the

police may seize evidence in plain view without a warrant). Because

Mendoza was not seized at the time the officers questioned him and

observed the presence of the gun in his car, his suppression motion

should not have been granted.

JUSTICES KILBRIDE and BURKE join in this partial

concurrence and partial dissent.